United States v. Maple

Opinion for the Court filed by Senior Circuit Judge SILBERMAN.

Opinion dissenting in part filed by Circuit Judge ROGERS.

SILBERMAN, Senior Circuit Judge:

Appellant Jerome Maple contends that D.C. Metropolitan Police Department (MPD) Officer James McCourt’s decision to open a closed compartment in Maple’s car to relocate a cellular phone while securing the vehicle was an unreasonable search under the Fourth Amendment. He also raises a Second Amendment challenge to his conviction under D.C. law for unlicensed gun possession, an argument he did not make below. We affirm the conviction. Officer McCourt’s conduct was not a search and hence did not implicate the Fourth Amendment, and Maple has not preserved his Second Amendment claim.

I.

On September 17, 2000, at about midnight, Officer McCourt was working patrol while parked in his marked police car near the intersection of North Capitol and Buchanan Streets in the northeast section of the District of Columbia. McCourt heard screeching tires to his left and watched as a small blue-gray Datsun passed him near the intersection of North Capitol and Rock Creek Church Streets at approximately 85-40 miles per hour, a high speed for the area. McCourt activated his police lights and the car pulled over into the far northbound lane of North Capitol Street. He radioed the car’s license plate number to the police dispatcher and two other officers soon arrived on the scene, MPD Officer Ellerbe and a Metro Transit Police Officer.

Appellant was the driver and sole occupant of the vehicle. He did not have a driver’s license with him. Instead, he provided McCourt with the name, date of birth, and social security number for William Lee Johnson, as well as a temporary Maryland registration card under the name Jerome Maple. The dispatcher then notified McCourt that Mr. Johnson’s license had been suspended. McCourt arrested Maple for driving with a suspended license and issued traffic tickets for that violation, as well as his speeding.

Officer Ellerbe took Maple to the police station. Because Maple’s car was in the right lane of a busy thoroughfare, MeCourt decided to relocate the vehicle to a legal parking space on a side street, a usual practice under these circumstances. He had the option of impounding the car, but chose not to because he wanted to spare Maple the added expense. MeCourt entered the ear, drove a half block north, turned left onto a side street and parked the car in a legal spot against the curb. As he leaned over the passenger’s seat to lock the passenger door, he saw a cellular phone on the floor. Concerned that someone would see it and break into the car, MeCourt tried to place the phone in the glove compartment, but it was either inaccessible or nonexistent, he could not remember which. Looking for an alternative, he noticed that there was also a compartment in the console between the bucket seats. He lifted the top to put the phone inside. As he raised the lid, he saw a silver pistol in the compartment. MeCourt immediately called the dispatcher to request that an evidence technician come to recover the gun. He then drove Maple’s car back to North Capitol Street, where he had left his own police cruiser.

When the evidence technician, Officer Lazarus, arrived, MeCourt showed him the pistol in the console. As Lazarus focused on the compartment where MeCourt was pointing, the technician noticed a small piece of cellophane, wrapped up and tied in a knot, sitting on the console between the compartment where the pistol was found and the gearshift lever. MeCourt, surprised that he had not noticed the package himself, picked it up and saw that it contained what appeared to be crack cocaine. The car was then fully searched but no additional contraband or weapons were found.

At the suppression hearing, Maple argued, inter alia, that MeCourt violated the Fourth Amendment by opening the closed compartment without a warrant and in violation of the department’s procedures. He also argued that the search could not be justified as an exercise of the police department’s “community caretaking function,” since the existence of a cell phone in plain view did not pose a serious threat to public safety. Judge Friedman, finding MeCourt a “very, very credible witness,” denied the motion to suppress, holding that, pursuant to the traffic maintenance powers of the police, the officer had a right to move the ear off of North Capitol Street and to secure it by locking it up. He thought that McCourt’s attempt at securing the cell phone in the compartment was a reasonable exercise in service of the community and not a violation of the Fourth Amendment.

At trial before Judge Johnson (Judge Friedman fell ill), Officer Lazarus testified that he recovered from the car a .380 caliber Davis Industries semiautomatic pistol with four rounds in the magazine, as well as a plastic bag containing 6.5 grams of cocaine base. The government also introduced evidence that Maple had been arrested previously for crack cocaine possession. The jury returned verdicts of not guilty on the charges of possession with intent to distribute five grams or more of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(l)(B)(iii), and possession of a firearm during a drug trafficking offense, in violation of 18 U.S.C. § 924(c)(1). Maple was found guilty, however, on the remaining charges of possession of cocaine base in excess of five grams, in violation of 21 U.S.C. § 844(a), and carrying a pistol without a license, in violation of D.C.Code AnN. § 22-3204(a) (1981) (now codified at D.C.Code Ann. § 22-4504(a) (2001)).

II.

This case has undergone something of a metamorphosis. The district judge thought Officer MeCourt’s opening of the console in order to deposit the cell phone was justified under what the Supreme Court has termed the “community caretak-ing function” of the police. And the government’s brief strongly supports that position.

It is common ground between the parties that if the police wish to search a car without a warrant to inventory its contents they must act in accordance with established procedures. See Florida v. Wells, 495 U.S. 1, 4, 110 S.Ct. 1632, 1635, 109 L.Ed.2d 1 (1990); Colorado v. Bertine, 479 U.S. 367, 374 n. 6, 107 S.Ct. 738, 742 n. 6, 93 L.Ed.2d 739 (1987). But the government contends that this situation is not governed by the requirements of an inventory search, because the officer’s objective in moving the car and opening the console was to protect defendant’s property. Its brief relies on Cady v. Dombrowski, 413 U.S. 433, 441, 93 S.Ct. 2523, 2528, 37 L.Ed.2d 706 (1973), in which the Supreme Court first used the community caretaking function rationale. There, local Wisconsin police officers arrived at the scene of a severe car accident involving an intoxicated Chicago police officer, Chester J. Dom-browski. He was arrested for drunk driving and taken to the station. Aware that all Chicago officers were required by regulation to carry service revolvers at all times and unable to get the location of the gun from the incoherent driver, the Wisconsin police performed an initial search of the front seat and glove compartment. They also returned to search the car again later that night after it had been towed to a local garage and left unguarded. Although the Wisconsin officer did not find the gun, he did uncover items soaked with blood on the floor of the car and in the trunk. When Dombrowski was confronted with the materials back at the station, he was prompted to confess that “there was a body lying near the family picnic area at the north end of his brother’s farm.” Cady, 413 U.S. at 437, 93 S.Ct. at 2526 (internal quotations omitted). After the body of one Herbert McKinney was discovered, warrants were issued leading to the discovery of additional evidence connecting Dombrowski to the crime, and he was eventually convicted of first-degree murder. The Court upheld the warrant-less searches of Dombrowski’s vehicle at the scene and at the private garage, since the officers had reacted reasonably to the accident out of “concern for the safety of the general public who might be endangered if an intruder removed a revolver from the trunk of the vehicle.” Id. at 447, 93 S.Ct. at 2530-31; see also Smith v. Thornburg, 136 F.3d 1070, 1075 (6th Cir.1998) (concluding that officers were entitled to make a warrantless entry into an unoccupied vehicle left with its motor running in an area known as a dumping ground for stolen vehicles “in order to protect themselves and the public from the danger created by the manner in which plaintiffs car was left unattended”).

Still, as the government acknowledged at oral argument, in Cady the Court noted that the state court had found as a fact that “the search of the trunk to retrieve the revolver was standard procedure in (that police) department, to protect the public from the possibility that a revolver would fall into untrained or perhaps malicious hands.” Cady, 413 U.S. at 443, 93 S.Ct. at 2529 (internal quotations omitted). And in our case it does not appear that the Metropolitan Police Department’s regulations, which extensively deal with inventory searches and impoundments, address this situation. See generally MPD Gen. Order 602(1) (May 26, 1972).¹

The government also suggested at oral argument, however, that “there is a third category of cases that’s identified in Cady by citation to the [sic] United States v. Harris, which is not cited in our brief, but ... seems to be more analogous, frankly, to this situation.” (Oral Argument Tr. at 18, April 7, 2003). Counsel went on to point out that in Harris, the Court noted that although there was an intrusion, “it was not a search in the sense of hunting for something.” Id.

Actually, Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968), a short, per curiam opinion of the Supreme Court, held that when an officer, after having conducted an inventory search of an impounded vehicle (pursuant to regulations of the MPD), opened a door in order to roll up the window for security purposes, (the district court had determined that the officer went to raise the window to protect the car’s interior from rain), see Harris v. United States, 370 F.2d 477, 478-79 (D.C.Cir.1966), and found what turned out to be a robbery victim’s automobile registration card, he was not conducting a search at all. “[T]he discovery of the card was not the result of a search of the car, but of a measure taken to protect the car while it was in police custody. Nothing in the Fourth Amendment requires the police to obtain a warrant in these narrow circumstances.” Harris, 390 U.S. at 236, 88 S.Ct. at 993-94 (emphasis added). In other words, Harris appears to recognize that not every intrusion, not every opening up of a door, window, or a console is a search even implicating the Fourth Amendment. The government at oral argument seemed to be shifting somewhat, without defendant’s objection, to that rationale to affirm the district court.

A more recent Supreme Court case, Kyllo v. United States, 533 U.S. 27, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001), supports this reading of Harris. Although the Court’s holding is not particularly relevant-that where the government uses a thermal imaging device to determine whether marijuana is grown in a house it is conducting a search governed by the Fourth Amendment, even though there is no physical intrusion-the opinion, in passing, gives its definition of a search. The Court observes that “[w]hen the Fourth Amendment was adopted, as now, to ‘search’ meant ‘[t]o look over or through for the purpose of finding something; to explore; to examine by inspection;' as, to search the house for a book; to search the wood for a thief.’ ” Kyllo, 533 U.S. at 33 n. 1, 121 S.Ct. at 2043 n. 1 (2001) (quoting N. Webster, An American Dictionary of the English Language 66 (1828) (reprint 6th ed.1989)) (first emphasis added).

The opinion goes on to explain that Supreme Court jurisprudence-which focuses on a person’s subjective expectation of privacy in determining whether a search takes place-is really asking whether a search governed by the Fourth Amendment occurred. See id. at 32-33, 121 S.Ct. at 2042-43. In other words, the anterior question before any court is whether a search of any kind has occurred, and only after that question is answered in the affirmative are we to consider the target’s expectation of privacy.

It is undisputed in this case that when McCourt opened the console he was not looking for “something.” It follows then that he did not conduct a search and therefore the Fourth Amendment was not implicated. His opening of the console should be regarded no differently than his opening of the car door in order to drive the car to a safer place. Appellant does not even claim that the door opening was a search-nor could he in light of Harris. The same analysis would apply, let us say, if an officer legitimately in a house to interview a witness attempts to leave the house and inadvertently walks into a closet next to an exit door and sees guns and drugs. These situations are somewhat analogous to the plain view exceptions, see, e.g., Arizona v. Hicks, 480 U.S. 321, 328, 107 S.Ct. 1149, 1154, 94 L.Ed.2d 347 (1987) (“a truly cursory inspection-one that involves merely looking at what is already exposed to view, without disturbing it — is not a ‘search’ for Fourth Amendment purposes”), although the latter are typically extensions of a legitimate search whereas in our case there was no search at all.

To be sure, if a search had occurred, the reasonableness of the officer’s actions would be judged by an objective standard, not his subjective intentions. See United States v. Mangum, 100 F.3d 164, 170 (D.C.Cir.1996) (citing Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996)). And certainly an exploratory search, which does not focus on any particular object, is no less a search than one which seeks a specified item. See Bond v. United States, 529 U.S. 334, 120 S.Ct. 1462, 146 L.Ed.2d 365 (2000). But we think our dissenting colleague is incorrect in arguing that any police intrusion into a closed compartment or closed door, regardless of the circumstances, is per se a search if a defendant had privacy expectations in the content of the compartment or room. No case that we have found has so held.

Appellant argues that to sanction Officer McCourt’s actions-even if they were entirely innocenb-is to open the door to police misbehavior. We are warned that if an officer were to find in a car any object of value, he would have an excuse to open a locked glove compartment or even a trunk. But that argument discounts the ability of district judges to detect subterfuge. The greater the effort an officer devotes to opening a car’s closed compartment the more likely his purpose is, at least in part, to search. Still we agree with appellant’s suggestion that the much better practice, (which the police department could adopt), would be to require an officer to take the valuable object to the station with the car keys.

In sum, we think it is unnecessary to decide whether the community caretaking exception extends to the facts of this case because no search took place. Officer McCourt’s discovery of the gun was a purely inadvertent byproduct of his opening of the console to place the cell phone inside.²

III.

Maple contends that the gun licensing statute he was convicted under, D.C.Code § 22-4504(a), effectively operates as a near total prohibition on possession of any type of firearm by anyone in the District of Columbia, thereby infringing upon his right to “bear arms” under the Second Amendment.

The statute reads in relevant part:

No person shall carry within the District of Columbia either openly or concealed on or about their person, a pistol, without a license issued pursuant to District of Columbia law, or any deadly or dangerous weapon capable of being so concealed.

D.C.Code Ann. § 22-4504(a). And the Second Amendment provides that:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

U.S. Const. amend. II. Because Maple did not raise this contention in the district court, we cannot address the claim unless there is an (1) “error,” (2) that is “plain,” (3) that “affects substantial rights,” and (4) “seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Johnson v. United States, 520 U.S. 461, 467, 117 S.Ct. 1544, 1549, 137 L.Ed.2d 718 (1997) (internal citations omitted).

Maple suggests that it would be “plain error” to refuse to consider the constitutionality of the D.C. law after United States v. Emerson, 270 F.3d 203, 260-61 (5th Cir.2001) (upholding the constitutionality of 18 U.S.C. § 922(g)(8), which prohibits persons who are subject to domestic restraining orders from possessing firearms, but recognizing that the Second Amendment guarantees a personal right to possess them), cert. denied, 536 U.S. 907, 122 S.Ct. 2362, 153 L.Ed.2d 184 (2002),³ and the corresponding Justice Department’s brief for the United States in opposition to the petition for a Writ of Certiorari (as well as its related internal memoranda sent to United States Attorneys).

Although there are cases in which it is appropriate to hear a constitutional claim not raised at trial, see, e.g., Johnson, 520 U.S. at 467-70, 117 S.Ct. at 1549-50, clearly this is not one of them. Convictions for unlicensed gun possession have been upheld for several years in the District of Columbia. See, e.g., United States v. Toms, 136 F.3d 176 (D.C.Cir.1998); Staten v. United States, 562 A.2d 90 (D.C.1989); see also United States v. Drew, 200 F.3d 871, 876 (D.C.Cir.2000) (declining to reach appellant’s Second and Fifth Amendment challenges to his conviction under 18 U.S.C. § 922(g)(8) for the possession of a firearm while subject to a court order, because he did not raise the issue below).

Accordingly, the judgment of the district court is

Affirmed.

1 . The dissent suggests that the specific rule violated provides that the automobile "shall not be inventoried in any way” unless taken to a police facility. Id. at 602(I)(B)(3)(b). Dissent Op. at 25. But Officer McCourt clearly was not conducting an inventory, defined by the General Order as “an administrative process by which items of property are listed and secured.” Id. at 602(I)(B). Nor in fact did McCourt “search” the vehicle according to the procedures, since the Order describes a search as "an examination of a person, place or thing with a view toward discovery of weapons, contraband, instrumentalities of a crime, or evidence.” Id. at 602(I)(A) (emphasis added). Furthermore, contrary to the dissent’s suggestion, Dissent Op. at 25, given the detailed distinctions in the Order between im-poundment and non-impoundment contexts, see id. at 602(I)(B)(3-4), there is no reason to assume that the procedures for handling personal property in impounded vehicles, (those “taken into police custody and placed on police department property or ... near a police facility”), id. at 602(I)(B)(4), would also, apply to cars that have not been taken to a designated police facility.

2 . It is not clear to us that all warrantless searches conducted pursuant to the community caretaking exception must be in accordance with formal procedures. See United States v. Markland, 635 F.2d 174, 176 (2d Cir.1980) (holding that an officer's opening of a "surprisingly heavy” beverage container at the scene of an auto accident was justified because it "could have contained anything from beer to bullion or a bomb").

3 . The court stated:

Although, as we have held, the Second Amendment does protect individual rights, that does not mean that those rights may never be made subject to any limited, narrowly tailored specific exceptions or restrictions for particular cases that are reasonable and not inconsistent with the right of Americans generally to individually keep and bear their private arms as historically understood in this country.

Id. at 261 (emphasis in the original).